Friday, May 22, 2015

A while back some friends over from
Honolulu came to town once. They wanted to go out. Compared to the tropical
metropolis on Oahu, Maui’s night life is a bit lacking. Nonetheless, they managed
to find a packed house with a big crowd, loud music, and a dance floor. When they
tried to hit the floor, however, security guards came out of a dark corner and
ushered them off.

I forgot to tell them about our
county's strange institution and its even stranger rules. No drinks on the
dance floor. Anyone dancing outside the designated “dance floor” area, well, can't.
Yes, it’s an actual rule. That's why bars have a marked off area with tape on
the floor or set up a barricade of tables to make space for dancing.

If you have to work with liquor on this island, you probably
know about our Department of Liquor Control. The rules they make and the way
they enforce them have made just about every establishment that sells liquor to
the public a potential target. It starts with a citation to the license holder.
The establishment would then have to face the liquor commission and plead its
case. The penalties can range from monetary fines, suspensions, and in the most
extreme cases a revocation of the liquor license. In other words, bars and
restaurants take liquor license violations seriously.

The no-dancing-outside-the-designated-dance-floor
rule has troubled tourists, partiers, drinkers, and especially bars for years.
Some folks have even organized and gotten a bit political about it.

Maui Dance Advocates has been
campaigning against the liquor commission’s rule about dancing. Their mission,
according to their website, is pretty straightforward: “We have been working
hard for 9 years to figure out if we can bob our heads and tap (our) toes in
bars and restaurants. We like dance floors for dancing, but we want a little
wiggle room while we are standing around listening to music in places that sell
alcohol.”

Last year, the Legislature got in on
the act and a bill was bandied about that would require the County to define
the term “dancing.” Seems easy enough, right? But then again, where do you draw
the line? Is bobbing your head to music dancing? Do you need a partner in order
to dance? What about music? Do you need that? What about tapping your toe? And
then there’s the First Amendment’s protection of the freedom of expression.
Wouldn’t dancing fall under that too? Could such a rule withstand a
constitutional challenge?

It shouldn’t be a surprise that our
County’s Department of Liquor Control, along with the City and County of
Honolulu, opposed the measure. The liquor commission opposed the bill because
it did not cite “any liquor licensees for any dancing-related violations.” That
may be true, but just because a bar didn’t cited is beside the point. The
bars—often afraid of getting a citation—enforce the rule themselves. The dance
advocates often argue that the bouncers and bar owners clamp down on dancing in
order to avoid a citation in the first place.

In any event, the bill went nowhere.
It never made it out of the Legislature.

This year’s different though. Maui
Senator J. Kalani English introduced a new bill that basically empowers each
and every county the right to enforce limitations on dancing at bars and
restaurants that serve booze. Here’s the catch: if we’re going to regulate
dancing, the bill requires the county to define the term “dancing.”

Jiva Jive, the leading advocate
behind MDA, has been hopeful things will change. He and his colleagues showed up at the Capitol this
session to show their support for the bill by dancing in the rotunda. Decked
out in his massive afro and purple crocs, Jive was cutting a rug in support of
the bill.

Apparently it worked (the fact that
the County didn’t oppose it probably helped too.). This year the Legislature
passed the bill and it is awaiting Governor Ige’s signature. He has until June
29 to let us know if he intends to veto the bill. From there, he has another 10
days to actually veto it. Then the Legislature would have to figure out if it
wanted to override him in a special session.

Then again, the governor could sign
the bill or let it pass into law without his signature and the County would
have to come up with a definition for the word “dancing” no later than October
1. And good luck with that.

Friday, May 8, 2015

Criminal defense lawyers like the Fifth Amendment. It’s got a
lot of good stuff in there like the right to a grand jury—the right to have
total strangers decide if the government has enough evidence against you to
even accuse you committing a serious crime. And of course we can’t forget
self-incrimination. That’s when you get to refuse to answer questions from
Congress or a court and “plead the Fifth.”

But at the very end of the amendment are twelve words that never
get much limelight: “nor shall private property be taken for public use,
without just compensation.” It’s too bad. Lawyers like to call it the Takings
Clause and it’s at work in every state in the union.

You can see it at work on Oahu today as the billion-dollar
rail project plows through neighborhoods, commercial blocks, and parking lots
across the west side. The corridor from Kapolei to Honolulu is not entirely on
public land. It’s a patchwork of privately-owned real estate.

If a landowner doesn’t want to give up his or her property to
the government, the government can go ahead and take it so long as it’s for
public use and so long as it gives the landowner just compensation. Taking
property for public transportation is a classic example of “public use.”

But sometimes things get a little weird. Most folks agree that
condemning property for a freeway or a public rail system is public use, but
what happens when the government doesn’t hold onto the property and gives it to
someone else? Is that public use?

When I was in law school on the mainland, I remember having to
take a property class and read a remarkable a case from the U.S. Supreme Court.
The opinion starts with the Polynesians who settled the Hawaiian Islands and
practiced what it called “a feudal land tenure system.” Reading up on
modern-day Hawaiian history for a property class in Lawrence, Kansas got my
attention and I was blown away when I learned more about it.

In the early 1960s, right after Statehood, we had a very
progressive State Legislature committed to addressing some very old
institutional problems in the islands. One of the most controversial was what
was perceived as a high concentration of land ownership by a handful of private
landowners. Sugar companies and royal estates had given away to land trusts
that owned enormous portions of the islands. This form of land ownership went
all the way back to the days of the Hawaiian Kingdom in the 1840s.

Over the years, most regular homeowners did not own the homes
they lived in. Instead, they had long leases. This, apparently, was simply
un-American and the Legislature set out to remedy this problem.

It decided to implement a dramatic and arguably revolutionary
form of land reform. It created the Hawaii Housing Authority. The HHA received
petitions from leaseholders and, once it determined if it was in the public
interest, had the power to condemn portions of land, cut it up into smaller
lots, and redistribute them.

I was shocked. It seemed really radical to think that our
State would go up against landed estates, take their property, and sell it to
working people. Then again, countries in the developing world were doing far
more revolutionary things. Hawaii’s land reform debate was occurring around the
same time Fidel Castro’s took control of Cuba. Former African colonies had
declared their independence and were looking for ways to address the disparity
of income. Wealth redistribution was the “it” thing to do.

The big land trusts challenged the constitutionality of the
HHA. They invoked the Fifth Amendment. How can this be “public use” under the
Takings Clause if it’s going straight to a private landowner? The case went all
the way up to the Supreme Court (not the most revolutionary institution by a
long shot) and the court found the purposes behind the HHA were indeed in
furtherance of public use.

“The people of Hawaii have attempted, much as the settlers of
the original 13 Colonies did, to reduce the perceived social and economic evils
of a land oligopoly traceable to their monarchs.” The Supreme Court was calling
out the landed estates as oligarchs and the State had every right to try and
break up their estates for the public good.

Of course, lofty goals don’t always pan out. The Supreme Court
had condoned the legislation of 1967 in 1984. The ardor of the 1960s had
cooled. Many who lead the charge against the landed estates were becoming
trustees themselves.

There’s still a high concentration of land ownership and the
lease-to-fee debate continues all over the islands. The HHA has been renamed
and its powers are seldom exercised. So much for radicalism. At least the Fifth
Amendment is still around.

Friday, May 1, 2015

There is a strange site in North Kihei. It’s across
the old Maui Lu and next to what now seems to be a defunct condominium. A grove
of tall and skinny coconut trees surround a large boulder. The boulder is enclosed
by a low rock wall under a grove of tall coconut trees.

If you don’t know where to look, you will breeze
right by it. There’s no place to park and no marker to attract visitors. It’s a
memorial that’s been beaten up by the weather and faded by neglect. But I could
still make out the hand-written inscriptions on the rock wall:

“Captain George Vancouver, Maalaea Bay 1792. . . . 1793,
he brought the first cattle and root vegetables. 1794 granted the right to the
Hawaiian people to fly the Union Jack as part of the Hawaiian flag. Unveiled by
Mayor Elmer Cravalho. Dec.-22-69.”

I was really puzzled. But who built it? Was this a
joint effort between Maui County and the Canadian government? It sure seemed
fishy. First of all, the inscription is handwritten into cement. It is not the
work of something you’d normally see from a government.

I started asking around. While many folks had never
heard of it, some long-term Mauians remembered it as well as the totem pole
that used to stand next to it. It’s even featured in old tourist brochures and
photos from the 1970s.

But that didn’t solve the mystery. The factual assertions
are suspect. Vancouver was among Captain Cook’s crew when they first laid eyes
on the Hawaiian Islands. Unlike Cook, who met his end here, Vancouver survived
his visit t Hawaii and made several trips back to the islands, including Maui.

Just like the inscription says, he introduced cattle
to the islands. The cows were a gift for Kamehameha. He also added to the
fledgling goats and sheep population too. He also gave other chiefs seeds for
different fruits like oranges and grapes.

As for giving Hawaiians the “right” to use the Union
Jack, that’s a stretch. He ordered his carpenters in 1794 to build Kamehameha a
Western-style ship complete with ironworks, masts, and sails. In the end, he
named it the Britannia and left him a Union Jack with a pennant—the proto-type
for our State flag. But was this a right that he conferred to the Hawaiian
people? Not likely.

The memorial is just dead wrong when it comes to
root vegetables. Vancouver did not bring roots to the islands. Hawaiians did.
Long before any Westerner came to these shores, the local diet revolved around
taro and yams.

So what gives? Who would be so devoted to the memory
and legacy of Vancouver? I set out to find out more and stumbled across a
resolution from the Maui County Council dating back to January 1970. It’s
basically a letter of congratulations to a Canadian for building the monument
on December 22, 1969—the same date in the inscription.

The resolution congratulates J. Gordon Gibson, a
Canadian logger, businessman, and politician. Gibson made his money in the
Canadian Northwest in the logging industry. He was a politician too, but was a
bit eccentric. Like Vancouver, he sailed to Maui. The rig was later re-named
the Maui Lu in honor of his wife, Louise. And yes, in 1956 he bought a 28-acre
property in North Kihei and opened a resort bearing the same name in 1960. The
mystery was solved.

Six years later, he apparently built a home-made
memorial to Vancouver. The resolution noted that Gibson led “the way for other
Canadians to develop the Kihei area.”

The County Council and Gibson might have been
prescient. Would the pioneering Canadian have never dreamed that his countrymen
and women would be the biggest group of foreign land buyers on Maui fifty years
later?

Last year, Canadians spent $84 million in buying
properties on Maui. Their presence is obvious in Kihei. The red maple leaf
flies proudly at strip malls and eateries along South Kihei Road. Canadians are
all over Kihei. Many of them are from British Columbia and they all certainly
know about Vancouver.

And so the memorial still stands—long after Gibson
and his aging resort, which finally came down back in February. Now that a
million-dollar time-share resort will be built over what used to be the Maui
Lu, perhaps the bizarre, little structure across the street can get a new totem
pole to attract Canadian visitors who know all about Vancouver (and Gibson for
that matter).